Woolard v. JLG Industries, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit

APR 25 2000
PUBLISH

UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT

ROY WOOLARD,

Plaintiff - Appellee and Cross-
Appellant,

v.

JLG INDUSTRIES, INC., a Nos. 98-6135
Pennsylvania corporation, 98-6136
98-6170
Defendant,

and

YOUNG ENTERPRISES, INC.;
PRIMECO, INC., d/b/a PRIME
EQUIPMENT COMPANY, a Texas
corporation,

Defendants - Appellants and
Cross-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(CIV-96-0670-M)

Edward S. Hubbard, of Nicholas, Grant & Hubbard, P.L.L.C., Houston, Texas,
(T.B. Nicholas, Jr., and Eileen K. Wilson, of Nicholas, Grant & Hubbard,
P.L.L.C., Houston, Texas, and W. Wayne Mills, of Mills & Whitten, Oklahoma
City, Oklahoma, with him on the briefs), for Appellant - Cross-Appellee Primeco,
Inc.

Tim N. Cheek (D. Todd Riddles with him on the briefs) of Cheek, Cheek, &
Cheek, Oklahoma City, Oklahoma, for Appellant - Cross-Appellee Young
Enterprises, Inc.

Elizabeth R. Castleberry (with Jack S. Dawson and James A. Scimeca with her on
the briefs) of Miller Dollarhide, Oklahoma City, Oklahoma, Appellee - Cross-
Appellant Roy Woolard.

Before ANDERSON , BARRETT , and HENRY , Circuit Judges.

HENRY, Circuit Judge.

Roy Woolard was injured by the collapse of an aerial work platform (or

“lift”). He subsequently filed this diversity action against JLG Industries, Inc.

(“JLG”), the lift’s manufacturer, and Young Enterprises (“Young”), the lift’s

owner at the time of the accident, alleging the defective manufacture, design,

distribution, and sale of the lift. Mr. Woolard later joined Primeco Inc., the

distributor that sold the lift to Young, alleging Primeco and its predecessor-in-

interest, American Hi-Lift (together, “Primeco”) failed to properly maintain and

repair the lift and failed to warn that the lift was unsafe. Young, as a third-party

plaintiff, filed a cross-claim against Primeco seeking indemnification for liability

based on theories of breach of contract, negligence, and strict products liability.

Prior to trial, Mr. Woolard settled his products liability claim against JLG.

2
His negligence claims against Young and Primeco proceeded to trial.

Specifically, Mr. Woolard asserted that (1) Young owed him a duty to maintain,

inspect, and provide safe and reliable equipment; (2) Young breached that duty

through its failure to perform the required inspections; (3) Primeco, as the

maintenance agent under a Distributor and Sales Agreement (the “Distributor

Agreement”) with JLG, was responsible for maintaining and repairing the lift; (4)

Primeco, having performed repairs to an electrical switch shortly before the

accident, knew that the lift was unsafe, and failed to notify either Mr. Woolard,

or his employer, Young Electric, of the lift’s condition or of the need for annual

inspection of the lift; (5) Primeco failed to notify Young of the required annual

inspections and failed to perform the required annual inspections; (6) Primeco

had a duty to Mr. Woolard and his employer to inform them of the need for

inspection of the lift as a third-party beneficiary of the Distributor Agreement;

and (7) Primeco’s predecessor installed unsafe replacement pins into the lift, the

failure of which contributed to the accident.

At trial, the jury found that Young was forty percent negligent and that

Primeco was sixty percent negligent, and awarded Mr. Woolard $1.5 million in

damages. The district court entered judgment for Mr. Woolard, reducing his

damages by $300,000.00 (the amount of his settlement with JLG) and calculated

a prejudgment interest award based on the reduced figure.

3
 Primeco now appeals, arguing that the district court erred in denying its

motion for judgment as a matter of law and its motion for a new trial. Primeco

raises the following arguments and defenses to support its claim that its alleged

negligence did not cause the accident: (1) Primeco did not breach its common

law duty to exercise ordinary care in repairing and maintaining the lift; (2)

because Mr. Woolard was not a third-party beneficiary of the Distributor

Agreement, the Distributor Agreement did not impose a contractual duty upon

Primeco to warn of the lift’s dangerous condition; (3) Primeco was not the

proximate cause of Mr. Woolard’s injuries; (4) the district court erred when it

denied Primeco’s motion for remittitur; and (5) the district court improperly

altered one of the jury instructions after closing arguments. Mr. Woolard cross-

appeals, arguing that the district court erred in calculating prejudgment interest

under Oklahoma law.

In addition, Young, as cross-appellant, appeals on its cross-claims against

Primeco. During this appeal, Young settled all of its claims with Mr. Woolard

for $400,000.00. Young argues that it was entitled to either judgment as a matter

of law and restitution in the form of indemnification or contribution based on its

cross-claims against Primeco. Young’s cross-claims sought to hold Primeco

liable for any claims Mr. Woolard successfully lodged against Young based on

theories of negligence, strict products liability, and breach of contract. In the

4
alternative, Young argues that the district court erred when it failed to properly

instruct the jury on these cross-claims.

We exercise jurisdiction under 28 U.S.C. § 1291 and affirm in part and

reverse in part. In particular, we hold that the district court properly denied

Primeco’s motion for a judgment as a matter of law and its motion for a new trial.

Further, we hold that the district court did not err in amending the jury

instructions after closing arguments. In Mr. Woolard’s cross-appeal, we hold

that the district court improperly calculated prejudgment interest, and we remand

for recalculation. Finally, on Young’s appeal of its cross-claims, we hold that the

district court properly denied the motion for judgment as a matter of law and did

not err in refusing Young’s requested instructions on its cross-claims.

I. BACKGROUND

JLG is the designer and manufacturer of the lift that collapsed and caused

Mr. Woolard’s injuries. The lift consisted of a base, a telescoping arm (or

“boom”), and a basket attached to the end of boom. With a worker in the basket,

the boom could extend outward and upward 110 feet and swing side to side,

providing a stable platform.

On April 2, 1996, Mr. Woolard was working as a journeyman electrician

for a private electrical repair company. He had been hired as a subcontractor for

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a construction project at Altus Air Force Base in Altus, Oklahoma. In connection

with this project, Mr. Woolard’s employer leased two JLG aerial lifts from co-

defendant Young. While working on the project, Mr. Woolard was injured when

one of the lifts collapsed, causing him to fall approximately seventy feet.

At trial, Mr. Woolard submitted evidence explaining the collapse of the

boom. Mr. William Munsel, a mechanical engineer and metallurgist, testified that

the boom contained a defective sheave pin that failed, causing the collapse of the

boom. See Aplts’ App. vol. VIII, at 174, 177-80. He explained that two pins

hold a single eye bolt in place and that this mechanism is critical to the

telescoping of the boom. See id. at 180. According to Mr. Munsel, one of the

sheave pins was made of an inferior, chrome-plated soft metal. See id. at 184-

86. The recommended JLG pin is made of hardened steel. See id. at 184-85. Mr.

Munsel concluded that the soft-metal wore excessively, causing the pin’s eye bolt

to fail and the boom to collapse. He testified that the difference between a proper

hardened steel pin and a soft metal pin was visually obvious. See id. at 185-86.

Mr. Woolard argued that Primeco, which rents, sells, and services

industrial equipment, was responsible for the accident. In 1989, Primeco

purchased the lift from its manufacturer, JLG. Mr. Woolard contended that

Primeco negligently rebuilt the lift and installed the inferior soft metal pins. He

presented evidence that Primeco performed a complete overhaul of the unit in

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1990. See id. at 280. As part of the overhaul, Primeco replaced the factory-

installed “sheave pins” with new pins. See id. vol. IX, at 296-97. In 1993,

Primeco sold the lift to Young. Although Primeco asserted that it used JLG-

authorized parts during the overhaul, Mr. Woolard presented evidence indicating

that Primeco may not have received the hardened steel metal pins it ordered and

that it used one of the chrome-plated soft-metal pins instead. See id. vol. VIII, at

280-84.

Further, Mr. Woolard argued that Primeco failed to notify him or his

employer about the need for an annual inspection, which would have revealed the

defects. Mr. Woolard submitted evidence that, on March 7, 1996, just a few

weeks before the lift collapsed, Young hired Primeco to service the lift.

Primeco’s field service mechanic, Philip Barker, traveled to Altus, Oklahoma and

repaired an electrical switch that was malfunctioning. See id. vol. VII, docs. 60

and 68 (Primeco’s field service report and billing invoice); vol. VIII, at 88, 91

(testimony of Phillip Barker). The repairman testified that the lift was in need of

further repairs (in addition to the malfunctioning switch) and an annual

inspection. He testified that in his opinion, even with the switch repaired, the lift

should have been taken out of service. See Aplts’ App. vol. VIII, at 105.

However, he did not advise anyone of his opinions or observations. See id. at 94.

On this point, Mr. Woolard submitted evidence that the manufacturer, JLG,

7
advised that the lift be inspected annually and provided its distributors with

maintenance manuals and annual machine inspection forms. See id. vol. VI, doc

18; vol. VII, doc. 24. Mr. Munsel testified that JLG’s manual requires that, as

part of an annual inspection, the sheave pins must be checked for excessive wear

and that, had this been done, the worn pin would have been discovered and

replaced. See id. vol. VIII, at 192-93. Further, Mr. Barker testified that to check

the pins for wear, the inspector ‘could physically look, pull and loosen the chain

off and examine for wear and mold in them.” Id. at 108; see id. at 95.

Accordingly, Mr. Woolard argued that, had Primeco conducted an annual

inspection or notified him or his employer of the need for an annual inspection or

of the need for the boom’s removal from service, the defective pins would have

been discovered and the accident prevented.

Additionally, Mr. Woolard argued that Primeco breached a contractual duty

to inform him and his employer that the lift was unsafe. Primeco was an

authorized distributor for JLG, and the two were parties to the Distributor

Agreement. The Distributorship Agreement provided, among other things, that

Primeco “shall notify the owner and user of said product” if Primeco became

aware that “any product is being improperly operated or that any Product requires

maintenance or service for its continued safe operation.” Id. vol. VII, doc. 32 at ¶

11-A. Mr. Woolard contended that he and his employer, as “users,” were third-

8
party beneficiaries of the Distributor Agreement between Primeco and JLG and,

as such, Primeco had a duty to warn each of them of the need for further repairs

and an annual inspection.

Mr. Woolard also argued that Young’s negligence caused his injuries. He

presented testimony from Charles Smith, a superintendent for Young, who stated

that he knew that annual inspections were necessary. Mr. Woolard maintained

that Young failed to perform the required inspections and failed to assure that

these inspections were completed.

Primeco argued that it was not responsible for the accident. First, it

presented evidence that the pins it installed during the overhaul were (1) new

pins, (2) obtained from an authorized supplier of JLG parts, and (3) came with

JLG tags attached. See id. vol. IX at 290-91, 305-06, 313-14, 525, 537. Primeco

presented testimony that a purchaser of a manufacturer’s authorized parts should

not be required to verify that the integrity of the parts meets the manufacturer’s

standards. See id. at 525. Thus, Primeco argued, it fulfilled its duty by installing

what it believed to be JLG-authorized parts.

In addition, Primeco submitted evidence that it could not have discovered

the worn pins. Primeco’s expert testified that because the pins were located on

the inside of the frame of the boom, Mr. Barker’s performing repairs on the

electrical switch would not have revealed that the pins needed to be replaced. See

9
id. vol. VIII, at 89, 92. In addition, Primeco’s expert testified that an annual

inspection would not have revealed the worn pins either. According to the expert,

an annual inspection would include an assessment of the functioning of the boom

chain assembly and the telescoping of the boom. See id. at 82-83. Any wobble or

play in one of the chain sheaves would alert the inspector of a problem warranting

further inquiry by disassembling part of the boom. See id. at 82-83, 108-09.

However, absent observation of such wobble or play, the inspector was not

required to disassemble the boom to check the pins for wear.

Primeco also noted that the JLG owner’s manual, as well as the American

National Standards Institute (“ANSI”), which sets out the “industry standards,”

did not require or suggest a complete dismantling of the lift during an annual or

periodic inspection. See id. vol. VI, doc. 17; vol. VIII, at 108, vol. IX, at 429-30,

437-38, 446-47, 452, 478-79, 492, 543. Finally, Primeco submitted evidence that

the disassembly necessary to discover the pins would “inject” contamination into

the parts and compromise the tolerance of the equipment. See id. vol. IX, at 543-

44.

At the close of both the plaintiff’s case and its own case, Primeco moved

for judgment as a matter of law, arguing that it had not breached its duty to

exercise ordinary care in repairing and maintaining the boom, that the Distributor

Agreement did not impose additional duties upon Primeco, and that, even if

10
Primeco did have such a duty, the evidence failed to establish that Primeco’s

actions were the cause of the accident. In turn, the district court denied both

motions.

The case was submitted to the jury, which found that Young was forty

percent negligent, that Primeco was sixty percent negligent, and awarded Mr.

Woolard $1.5 million in damages. Although Young had asserted cross-claims

against Primeco seeking contribution or indemnification, the district court did not

instruct the jury on those cross-claims. The jury thus made no findings regarding

Primeco’s liability, if any, to Young.

Primeco then filed a combined post-trial motion that moved for the

following: a judgment as a matter of law, a new trial, and/or alteration of the

judgment. In its motion for judgment as a matter of law, Primeco argued that it

did not breach its duty to exercise ordinary care and that Primeco owed no duty to

Mr. Woolard under the Distributor Agreement. In its motion for a new trial,

Primeco argued that it was entitled to a new trial because: (1) even if Primeco had

a legal duty to Mr. Woolard, the evidence failed to establish Primeco was the

cause of the accident; (2) the evidence failed to support the jury’s $1.5 million

damage award (in the alternative arguing for a remittitur of damages consistent

with the evidence); and (3) the jury was improperly instructed. Finally, Primeco

argued that, if the district court denied these motions, Primeco was entitled to a set

11
off for the $300,000.00 JLG settlement.

The district court denied Primeco’s motion for judgment as a matter of law

and its motion for a new trial. However, the district court agreed that Primeco was

entitled to a set off for the $300,000.00 settlement with JLG. Accordingly, the

district court reduced the $1.5 million judgment to $1.2 million.

Young filed a motion analogous to Primeco’s for an amendment of the entry

of the judgment. In addition, Young sought a judgment as a matter of law and a

new trial pursuant to Federal Rules of Civil Procedure 50 and 59 based on the trial

judge’s failure to instruct on its cross-claim. The district court amended the

amount of the judgment, as noted above, and denied the remainder of Young’s

motions.

On appeal, Primeco argues that the district court erred in denying its motion

for judgment as a matter of law and its motions for a new trial or remittitur. Mr.

Woolard cross-appeals, arguing that the district court erred in calculating

prejudgment interest under Oklahoma law. In addition, co-defendant Young, as

cross-appellant, appeals on its cross-claims against Primeco. For the reasons set

forth below, we affirm each of the district court’s decisions, with the exception of

its calculation of prejudgment interest; we remand this claim for recalculation in

accordance with this opinion.

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II. DISCUSSION

A. Primeco’s appeal

On appeal Primeco argues that the district court should have granted its

motion for judgment as a matter of law under Fed. R. Civ. P. 50(a)(1) and its

motions for a new trial under Fed. R. Civ. P. 59. In particular, Primeco advances

four distinct challenges to the district court’s denial of these motions. It argues

that the district court erred in concluding that: (1) a reasonable jury could find

that Primeco breached its duty to Mr. Woolard as a third-party beneficiary of the

Distributor Agreement between Primeco and JLG; (2) a reasonable jury could also

find that Primeco breached its common law duty of ordinary care to Mr. Woolard;

(3) a reasonable jury could find that Primeco’s acts were the proximate cause of

Mr. Woolard’s injuries; and (4) the $1.5 million damage award is supported by the

evidence. Primeco also argues that the district court erroneously altered an

instruction before submitting the case to the jury.

When we review a district court’s denial of a motion for judgment as a

matter of law, federal law governs whether a judgment as a matter of law is

appropriate. See Brown v. McGraw-Edison Co. , 736 F.2d 609, 612 (10th Cir.

1984). When sitting in diversity, however, we apply the law of the forum state, in

this case, Oklahoma. See id. at 613. A federal district court’s state-law

determinations are entitled to no deference and are reviewed de novo. See Salve

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Regina College v. Russell , 499 U.S. 225, 239 (1991). In reviewing the evidence

presented to the district court, “we must determine whether there is evidence upon

which the jury could properly find a verdict for the party against whom the motion

is directed.” Magnum Foods, Inc. v. Continental Cas. Co. , 36 F.3d 1491, 1503

(10th Cir. 1994).

As to Primeco’s motion for a new trial, “[f]ederal law governs the granting

or denial of a motion for a new trial in diversity actions in federal court.” Blanke

v. Alexander , 152 F.3d 1224, 1235 (10th Cir. 1998); see Fed. R. Civ. P. 59. On

review, the trial court’s decision to deny a motion for new trial will stand absent a

showing of “a manifest abuse of discretion.” Blanke , 152 F.3d at 1235. Our

inquiry focuses on whether the verdict was “clearly, decidedly, or overwhelmingly

against the weight of the evidence.” Id. at 1236 (quotations omitted).

Mindful of these standards, we proceed to examine Primeco’s arguments

that it did not breach a contractual or common law duty. Then, we turn to its

arguments regarding proximate cause and the amount of the damages award.

1. Breach of Duty Arising under Contract

Under Oklahoma law, to establish a claim based on negligence, the plaintiff

must establish (a) the existence of a duty owed by defendant to plaintiff; (b) that

the defendant failed to perform that duty; and (c) that the defendant’s failure

14
caused the plaintiff injury. See Krokowski v. Henderson Nat’l Corp. , 917 P.2d 8,

11 (Okla. 1996).

Under the Distributor Agreement, Primeco agreed to provide a variety of

services, including installation and inspection services. Specifically, Primeco

agreed “to promptly render installation and inspection service . . . with respect to

all Products and Parts Sold to a customer . . . .” Aplts’ App. vol. VII, doc 32, at ¶

5.E. The Distributor Agreement defines the “Installation and Inspection Services”

to comprise: “Inspection, starting and testing . . . of Products and Parts, as

specified in the applicable installation and inspection report forms, [illegible] to

insure successful operation and resultant customer satisfaction. . . .” Id. ¶ 1. This

section suggests that Primeco’s duty extended beyond simple installation of

authorized parts and extended to its customers.

Oklahoma law provides that a tort may arise in the course of the

performance of a contract and that tort may then be the basis for recovery even

though it is the contract that creates the relationship between the parties. See Hall

Jones Oil Corp. v. Claro , 459 P.2d 858, 861 (Okla. 1969).

Conduct that is merely a breach of contract is, of course, not a tort.
Nevertheless, a tort may arise in the course of the performance under a
contract so that a breach of the contract may not be the gravamen of the
action, but an intentional wrong may be. The contract in such case is the
mere incident creating the relation furnishing the occasion for the tort
and giving rise to an action ex delicto . . . . [It] is well established that,
where a breach of contract is permeated with tort, the injured person may
elect to waive the contract and recover in tort; or, differently stated,

15
 although the relation between the parties may have been established by
contract, express or implied, if the law imposes certain duties because
of the existence of that relation, the contract obligation may be waived
and an action in tort maintained for the violation of such imposed duties.

Id. at 861-62 (citations omitted) (emphasis supplied). Under these principles, the

district court concluded that there was sufficient evidence that Primeco owed Mr.

Woolard a duty, ex delicto , under the Distributor Agreement between JLG and

Primeco because Mr. Woolard was a third-party beneficiary of the contract.

A person may sue for damages resulting from the breach of a contractual

obligation, even though he was not a party to the contract and had no knowledge

of it when it was made, if he was an intended beneficiary of that obligation. See

Hesser v. Central Nat’l Bank & Trust Co. 956 P.2d 864, 867 (Okla. 1998). “It is

not necessary that the party be specifically named as a beneficiary but only that the

contract be made expressly for the benefit of a third person and expressly simply

means in an express manner; in direct or unmistakable terms; explicitly; definitely;

directly.” Keel v. Titan Constr. Corp. , 639 P.2d 1228, 1231 (Okla. 1981) (internal

quotations omitted).

Whether an individual is a third-party beneficiary of a contract is

determined by the intent of the contracting parties. See G. A. Mosites Co. v.

Aetna Cas. & Sur. Co. , 545 P.2d 746, 749 (Okla. 1976) (discussing the “necessity

of finding the intent of the parties to the contract in determining whether a third-

party beneficiary contract was created”). “When a contract is reduced to writing,

16
the intention of the parties is to be ascertained from the writing alone, if possible ..

. .” Okla. Stat. Ann. tit. 15, § 155 (West 1993). Rules of construction and

interpretation are available if an ambiguity is present, but where no ambiguity

exists in the language used, we determine the intent of the parties from the words

used. Frensley v. White , 254 P.2d 982, 985 (Okla. 1953).

Primeco argues that “it is obvious from the contractual language” that

Primeco and JLG did not intend to benefit any third parties. Primeco’s First Br. at

23. In support of its argument, Primeco asserts that Mr. Woolard is not directly

mentioned in the Distributor Agreement.

After reviewing the Distributor Agreement, we agree with the district court

that Mr. Woolard is expressly and unambiguously a third-party beneficiary of the

contract and, as such, entitled to enforce the duty created thereunder. The relevant

provision of the contract states:

11. Product Safety

A. Distributor [Primeco] and JLG agree that product safety and
improvement are goals to which each is committed. . . . As and to the
extent that Distributor becomes aware that any Product is being
improperly operated or that any Product requires maintenance or service
for its continued safe operation, Distributor shall notify the owner and
user of said Product of such and use its best efforts to have the owner
and user of the Product contact the same.

Aplts’ App. vol. VII, at doc. 32, at ¶ 11.A.

It is clear from this provision that the parties intended the owners and users

17
of JLG products to be a beneficiary of Primeco and JLG’s commitment to safety.

The Distributor Agreement expressly states terms that the distributor “shall notify

the owner and user” if it is aware that a JLG product requires maintenance or

service. Id. It is undisputed that Mr. Woolard and the company for which he was

working at the time of the accident were users of the lift.

Primeco also argues that the Distributor Agreement’s non-assignment

clause, which states that Primeco’s obligations under the agreement cannot be

assigned, supports its argument that the contract conferred no third-party

beneficiary status. The Distributor Agreement’s non-assignment clause provides

the following language:

This Agreement shall be binding upon, and shall enure to the benefit
of the parties and their respective heirs, successors, and assigns;
provided, however that [Primeco]’s rights and obligations hereunder
cannot be assigned, in whole or in part, directly or indirectly, by
[Primeco], by operation of law or otherwise, to any person, firm or
corporation without the prior written consent of JLG.

Id. ¶ 12.F.

Although the assignment of a contract will confer rights and obligations

upon a third-party, the assignment is unrelated to one’s status as a third-party

beneficiary. The non-assignment clause serves to protect JLG and its successors

from Primeco’s unauthorized transfer of rights and obligations and does not speak

to the intended third-party beneficiary status conferred upon Mr. Woolard in

paragraph 11 of the Distributor Agreement.

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 2. Breach of Common Law Duty

Regardless of the third-party beneficiary theory, there is another source of

liability, that being Primeco’s common law duty to exercise ordinary care. Aside

from the provisions of the Distributor Agreement, Primeco also argues that the

district court erred in concluding that a reasonable jury could properly find that it

breached its common law duty to exercise ordinary care in maintaining and

inspecting the lift. Primeco addresses both instances of alleged negligence

identified by Mr. Woolard: (a) the 1990 overhaul of the lift, when Primeco’s

predecessor replaced the factory installed sheave pins with new pins; and (b)

Primeco’s failure to take the lift out of service and conduct an annual inspection

after Mr. Barker repaired the electrical switch in March 1996.

According to Primeco, it did not breach its duty to Mr. Woolard on either

occasion. Primeco maintains that, in 1990, its predecessor-in-interest installed

proper replacement pins in the lift, and that, in March 1996, its repairman

exercised ordinary care in repairing the electrical switch. As to the latter instance

of alleged negligence, Primeco acknowledges that it did not take the lift out of

service or conduct an annual inspection. However, it maintains that an annual

inspection would not have revealed the defect in the pins.

Under Oklahoma law, “the existence of a duty depends on the relationship

19
between the parties and the general risks involved in the common undertaking.”

Wofford v. Eastern State Hosp. , 795 P.2d 516, 519 (Okla. 1990). “Whether a

defendant stands in such relationship to a plaintiff that the law will impose upon

the defendant an obligation of reasonable conduct for the benefit of the plaintiff is

a question for the court.” Id.

In the context of performing repairs, “one who is paid to repair [chattels]

owes a duty of care to both the owner . . . and to the general public to assure that

the repair is properly performed or the owner is warned of its dangerous condition,

where the dangerous condition is discoverable in the exercise of ordinary care.”

Delbrel v. Doenges Bros. Ford, Inc. , 913 P.2d 1318, 1322 (Okla. 1996). “[A]

repairer of chattels has a duty to exercise reasonable care not to cause bodily harm

to one whose person or property might reasonably be expected to be endangered by

probable use of the chattel after repair.” Stuckey v. Young Exploration Co. , 586

P.2d 726, 730 (Okla. 1978). This duty includes not only “perform[ing] the repair

properly, but also the duty to inspect and test the [chattel] in order to determine

whether [it] could be operated without danger to plaintiff and the public.” Id. ; see

Barnhart v. Freeman Equip. Co., 441 P.2d 993, 997 (Okla. 1968) (“‘One who as an

independent contractor negligently makes, rebuilds, or repairs a chattel for another

is subject to the same liability as that imposed upon negligent manufacturers of

20
chattels.’”) (quoting Restatement of Torts § 404). 1

Importantly, that duty “to inspect and test” the chattel, see Stuckey , 586

P.2d at 730, is not unlimited. If the repairer of chattels uses materials provided by

a manufacturer or an employer, he or she may not be held liable for injuries caused

by defects in the materials unless those defects are obvious. As the Restatement

explains:

Indeed, chattels are often made by independent contractors from
materials furnished by their employers. In such a case, the contractor is
not required to sit in judgment on the plans and specifications or the
materials provided by his employer. The contractor is not subject to
liability if the specified design or material turns out to be insufficient to
make the chattel safe for use, unless it is so obviously bad that a
competent contractor would realize that there was a grave chance that his
product would be dangerously unsafe. The same is true in regard to
materials furnished by the employer.

Restatement (Second) of Torts (1965) § 404 cmt. a. Our sister circuit has noted,

“it would . . . be a singular doctrine” if we were to hold that an installation

contractor had a duty to inform its customers that there might be some defects in

the equipment, “‘in the absence of circumstances whereby any dangerous defects

were known or readily foreseeable by a reasonably prudent contractor.’”

Ackerman v. York Corp., 260 F.2d 1, 6-7 (8th Cir. 1958) (quoting the district

court) (affirming district court’s denial of plaintiff’s motion for a new trial where

1
The Restatement (Second) of Torts § 404 provides the identical
language.

21
jury found that installation contractor had no duty to dismantle the employer-

supplied equipment “in order to determine whether the equipment was in any way

inadequate for the purposes for which it was to be used”).

Applying these principles, we first conclude that the district court properly

ruled that a jury could reasonably find that Primeco breached its duty of ordinary

care to Mr. Woolard when its predecessor conducted the overhaul of the lift in

1990. Although Primeco offered evidence that its predecessor replaced the

original pins with JLG-authorized pins, Mr. Woolard presented evidence to

controvert Primeco’s contentions. In particular, Mr. Woolard presented expert

testimony that one of the sheave pins installed by Primeco’s predecessor was made

of an inferior chrome-plated soft metal rather than the authorized hardened steel.

According to Mr. Woolard’s expert, the difference between a proper hardened

steel pin and a soft metal pin was visually obvious. Relying on this testimony, a

jury could reasonably conclude that Primeco’s predecessor failed to exercise

ordinary care by installing a defective sheave pin in the lift.

We reach a similar conclusion as to Primeco’s failure to conduct an annual

inspection after repairing the electrical switch in March 1996. As noted above,

Primeco did present evidence suggesting that during an annual inspection,

disassembly of the lift was not required. According to Primeco’s witnesses, an

inspector would test the sufficiency of the pins by assessing the functioning of the

22
boom. Primeco’s evidence indicated that, because its mechanic observed no

obvious wobble or play in the chain sheaves after he repaired the electrical switch,

an annual inspection (if conducted prior to the accident) would not have led the

inspector to disassemble the lift and discover the defective pin.

However, Mr. Woolard presented substantial evidence to rebut Primeco’s

theory of the scope of an annual inspection. In particular, JLG’s Annual Machine

Inspection Report requires that an inspector check all “pins, shafts, bearings . . .

chains and sprockets (or sheaves) for proper installation, tightness, excessive wear,

cracks or distortion.” Aplts’ App. vol. VII, doc 24 (emphasis added). JLG’s

operating manual provided similar instructions. See id. vol. VI, doc 17, at 1860

(“Check . . . pins for damage or excess wear.”). In addition, Primeco’s mechanic

testified that to check the pins for wear, they would need physical examination.

Contrary to Primeco’s theory, the Report does not explain that such inspection of

the pins should be done indirectly -- i.e. by checking the functioning of the boom.

This evidence is sufficient for the jury to have concluded that an inspection,

required by the JLG Annual Inspection Report and the JLG maintenance manual,

would have revealed the excessively worn sheave pin.

The record thus supports the inference that Primeco owed Mr. Woolard a

duty “as a person who could foreseeably be injured by [its] negligent failure to

repair or warn against a dangerous condition concerning the [lift].” Delbrel , 913

23
P.2d at 1321. Accordingly, we conclude that the district court properly interpreted

the scope of Primeco’s common law duty to Mr. Woolard in denying Primeco’s

motions for judgment as a matter of law and for a new trial.

3. Proximate Cause

Primeco also contends that, even if the jury could have properly found that

it breached its duties to Mr. Woolard under the Distributor Agreement and the

common law, the evidence is still insufficient to support the conclusion that

Primeco’s breach of those duties proximately caused the accident. In particular,

Primeco argues that: (1) Primeco was not a proximate cause of Mr. Woolard’s

injuries because an annual inspection would not have revealed the defective pin,

and (2) Young (rather than Primeco) was the proximate cause of those injuries

because Young knew of the need for annual inspections and allowed the lift’s

continued use.

Under Oklahoma law, a proximate cause is defined as one that, “‘in the

natural and continuous sequence, produces [the plaintiff’s] injury and without

which the injury would not have happened.’” Dirickson v. Mings , 910 P.2d 1015,

1018-19 (Okla. 1996) (quoting Tomlinson v. Love’s Country Stores , 854 P.2d 910,

916 (Okla.1993)). A plaintiff’s injury may have more than one proximate cause.

See Kirkpatrick v. Chrysler Corp. , 920 P.2d 122, 126 (Okla. 1996) (“Tortfeasors

24
are classified as concurrent tortfeasors when their independent acts concur to

produce a single or indivisible injury.”); Sears, Roebuck & Co. v. Huang , 652

A.2d 568, 573 (Del.1995) (“Multiple defendants may be liable as joint tortfeasors

if each defendant’s negligence is found to be a proximate cause of a plaintiff’s

injury.”). Applying that definition, we are not persuaded by Primeco’s arguments

regarding proximate cause.

The first of these arguments—that an annual inspection would not have

revealed the defective pin in the lift—reprises the same points advanced by

Primeco in challenging the evidence regarding the breach of its duties to Mr.

Woolard. For the reasons set forth above, we conclude that the jury could have

reasonably rejected Primeco’s contention that an annual inspection would not have

revealed the defective pin. In light of the additional evidence presented by Mr.

Woolard (that Primeco’s predecessor installed the defective pin, that Primeco had

a duty under the Distributor Agreement to inform the lift’s owner and user of the

need for maintenance or service and that Primeco knew of the need for an annual

inspection but did not perform one), the record supports the inference that Primeco

proximately caused Mr. Woolard’s injuries.

Primeco’s second proximate cause argument—that Young rather than

Primeco was the proximate cause of Mr. Woolard’s injuries—is based on the

testimony of Mr. Charles Smith, a superintendent for Young, who testified that he

25
knew annual inspections were necessary. Mr. Smith explained that on the date

Young took possession of the lift in 1993, he assumed all necessary annual

inspections had been performed, although he did not request any documents

supporting this. In light of this testimony, Primeco maintains that it is relieved

from liability because the defect or hazard was already known. See Pickens v.

Tulsa Metro. Ministry , 951 P.2d 1079, 1088 (Okla. 1997).

Primeco’s argument is undermined by the principle that an injury may have

more than one proximate cause. See Kirkpatrick , 920 P.2d at 126; Sears, Roebuck

& Co. , 652 A.2d at 573. Thus, even if Young did know about the need for annual

inspections, the actions by both Primeco and Young could have been a proximate

cause of Mr. Woolard’s injuries. That conclusion is further supported by the terms

of the Distributor Agreement, which requires the distributor (Primeco) to notify

“the owner [i.e. Young] and user [i.e. the employer and Mr. Woolard]” of

maintenance and service requirements. See Aplts’ App. vol. VII, doc. 32, at ¶

11.A.

Accordingly, the district court did not err in rejecting these proximate cause

arguments in denying Primeco’s motions for judgment as a matter of law and for a

new trial. 2

Primeco also submits that application of Oklahoma’s “accepted work
2

doctrine” relieves Primeco of liability. The “accepted work doctrine,” which
(continued...)

26
 2
(...continued)
emanated from the English case Winterbottom v. Wright , 10 M&W 109, 11 L.J.
Ex. 415, 152 Eng. Rep. 402 (1842), requires privity of contract for a party to sue
on a claim of breach of a duty arising out of the contract. See Pickens , 951 P.2d
at 1087. In the independent contractor arena, the doctrine specifically provides
that:
an independent contractor who has turned over his work and had
it accepted by the owner is not subject to liability to third parties
injured by the defective condition of the work. Liability if any,
is placed on the owner who has maintained or used the property
in its defective condition . . . .

Id. at 1088.
Primeco should know that this doctrine has largely been abandoned by
Oklahoma courts in contractor liability cases in favor of Justice Cardozo’s
opinion in MacPherson v. Buick Motor Co. , 111 N.E.1050 (N.Y. Ct. App. 1916),
which held that a manufacturer of an automobile is liable to a third person,
namely the owner of the vehicle who had purchased it from an independent
dealer, for his injury resulting from the collapse of a negligently constructed
wheel of the automobile. Almost without exception, the MacPherson doctrine
has been extended to repairers of chattels. See Barnhart , 441 P.2d at 998 (noting
cases and citing with approval the doctrine that “he who repairs a chattel is
bound to exercise reasonable care not to cause bodily harm or damage to one
whose person or property may reasonably be expected to be endangered by the
probable use of the chattel after the making of the repair” ); Pickens , 951 P.2d at
1088 (noting that “absence of privity of contract will not bar an injured third-
party from recovering damages for injuries received as a result of a contractor’s
negligent work”); St. Paul Fire & Marine Ins. Co. v. Getty Oil Co. , 782 P.2d 915,
919 (Okla. 1989) (stating that in 1961 the Oklahoma Supreme Court applied the
modern MacPherson doctrine that “‘no privity of contract is essential to support
liability for negligence in respect of acts or instrumentalities which are
imminently dangerous. The liability in such instances . . . depends merely on the
duty of every man to act so as not to injure the persons or property of others.’”)
(quoting Leigh v. Wadsworth , 361 P.2d 849, 852 (Okla. 1961)).
Moreover, even if the accepted work doctrine’s demise has been
exaggerated, a well-established exception is applicable here.

(continued...)

27
 4. Damages

Primeco maintains that the damage award of $1.5 million to Mr. Woolard is

excessive and contrary to the evidence and that the district court abused its

discretion in denying Primeco’s motion for a new trial and its alternative motion

for a remittitur. “Federal law governs the decision whether a remittitur should be

granted in a diversity case. ‘Under federal law, whether the trial court properly

refused to grant remittitur or a new trial on the ground of an excessive damage

2
(...continued)
“[W]here the contractor has wilfully created a condition which he
knows, or by the exercise of ordinary diligence should have known,
to be immediately and certainly dangerous to persons other than the
contractee, who will be necessarily exposed to such danger,
considerations of public policy do not require the application of the
general [accepted work doctrine] rule.”

Creamer v. Bucy , 700 P.2d 668, 670-71 (Okla. Ct. App. 1985) (quoting
Schlender v. Andy Jansen Co. , 380 P.2d 523, 524 (Okla. 1963)). See Greenwood
v. Lyles & Buckner, Inc. 329 P.2d 1063, 1065 (Okla. 1958) (holding that the
doctrine does not apply where contractor’s wilful negligence creates a condition
that he knows to be “immediately and certainly dangerous to [third] persons . . .
who would necessarily be exposed to [the] danger”). As noted above, there is
sufficient evidence in the record to support the jury’s conclusion that had
Primeco exercised ordinary diligence while providing the Installation and
Inspection Services under the Distributor Agreement, Mr Woolard would not
have been exposed to the dangerous condition of the lift.

.

28
award is tested by an abuse of discretion standard.’” K-B Trucking Co. v. Riss

Int’l Corp. , 763 F.2d 1148, 1162 (10th Cir. 1985) (citation omitted) (quoting

Garrick v. City & County of Denver , 652 F.2d 969, 971 (10th Cir. 1981)). Absent

an award that shocks the judicial conscience or raises an irresistible inference that

passion, prejudice, corruption or other improper cause played a part in the jury’s

damage award, we will not disturb the jury’s damage award. See Blanke , 152 F.3d

at 1236; see also Oklahoma Federated Gold & Numismatics, Inc. v. Blodgett , 24

F.3d 136, 142 (10th Cir. 1994).

Here, the record supports the jury’s verdict. Mr. Woolard presented

evidence that his medical bills totaled nearly $100,000.00. His future estimated

medical expenses would be in the range of about $35,000.00. The record indicates

that his loss of past and future earnings totaled nearly $300,000.00. Mr.

Woolard’s counsel sought an additional $410,000.00 for pain and suffering and

another $410,000.00 for Mr. Woolard’s permanent physical impairment. Damages

for pain and suffering are not susceptible to proof by a specific dollar amount, and

accordingly, the jury has wide discretion in rendering a particular amount. See

Blanke , 152 F.3d at 1237. Although the jury’s verdict of $1.5 million exceeds the

amount that Mr. Woolard sought, “[b]ased on h[is] injuries, the necessary medical

procedures, h[is] probable need for future medical attention, the limitations on

h[is] activities, and the pain []he has experienced, we cannot say that the jury’s

29
verdict for [Mr. Woolard] was clearly, decidedly, or overwhelmingly against the

weight of the evidence.” Id. In fact, when the JLG settlement is taken into

account, the jury’s verdict amounted to what plaintiff’s counsel

sought–approximately $1.2 million. As such, “we do not find the award to be so

excessive as to raise an irresistible inference of passion, prejudice, or other

improper cause.” Id. We hold that the district court did not manifestly abuse its

discretion in denying Primeco’s motion for a new trial or a remittitur.

5. Jury Instructions

Primeco also argues that the district court erroneously altered a jury

instruction prior to the case’s submission to a jury. “When deciding whether a

possible error in a jury instruction mandates reversal, ‘we review the record as a

whole to determine whether the instructions state the law which governs and

provided the jury with an ample understanding of the issues and the standards

applicable.’” Comcoa v. NEC Tels., Inc. , 931 F.2d 655, 661 (10th Cir. 1991)

(quoting Big Horn Coal Co. v. Commonwealth Edison Co. , 852 F.2d 1259, 1271

(10th Cir. 1988) (internal quotations omitted)).

After closing arguments and while the district court judge was instructing

the jury, Mr. Woolard objected to instruction 17 and its corresponding verdict

30
form B. 3 Mr. Woolard argued that the jury form was fundamentally incorrect

because it instructed the jury that if it found one defendant liable, but not the

other, the jury must find in favor of both defendants.

Young disagreed, arguing that the jury instruction was correct and that Mr.

Woolard had waived any objection to the wording of the instruction. Further,

Young argued that the proposed change would have removed the possibility of the

3
Instruction 17 originally stated:

If you find that the plaintiff’s injuries were directly
caused by the contributory negligence of plaintiff, and not
by any negligence on the part of the defendants, or, if you
find that plaintiff has failed to prove that either one or
both defendants were negligent , then you shall use Section
“B” of the verdict form and find in favor of both
defendants .
In this connection you are advised that no specific
finding need be made by you as to JLG and/or Young
Electric, since they are not parties to this lawsuit.

Aplts’ App. vol. II at 365 (emphasis supplied). The relevant verdict form
originally stated:

USE THIS SECTION “B” ONLY IF you find that the
plaintiff’s damages were directly caused by his own
contributory negligence or if you find that plaintiff has
failed to prove that defendants Young Enterprises and/or
Primeco, were negligent, or if you find that plaintiff’s
damages were directly caused by the acts of non-parties
JLG and/or Young Electric. Under this section, you need
not make a specific finding as to any negligence of a non-
party.

Id. at 364 (emphasis supplied).

31
jury finding that JLG or Young Electric was the cause of the accident. Primeco

similarly objected. The district court overruled the objection and adopted Mr.

Woolard’s proposed changes. 4

Primeco, who joined Young in objecting before the district court, raises

similar arguments on appeal: (1) that the amendment to the jury instruction was

incorrect; and (2) that because the change to the instruction followed closing

arguments, Primeco was deprived of an opportunity to adequately focus the jury on

4
As amended, Instruction 17 stated:

If you find that plaintiff’s injuries were directly
caused by the contributory negligence of plaintiff, and not
by any negligence on the part of the defendants, or, if you
find that plaintiff has failed to prove that both defendants
were negligent , then you shall use Section “B” of the
verdict form and find in favor of both defendants.
In this connection you are advised that no specific
finding need be made by you as to JLG and/or Young
Electric, since they are not parties to this lawsuit.

Id. vol. I at 241 (emphasis supplied). The revised verdict form provided:

USE THIS SECTION “B” ONLY IF you find that
the plaintiff’s injuries were directly caused by the
contributory negligence of plaintiff, and not by any
negligence on the part of the defendants Young Enterprises
and Primeco, or, if you find that plaintiff has failed to
prove that both defendants were negligent . In this
connection you are advised that no specific finding need
be made by you as to JLG and/or Young Electric, since
they are not parties to this lawsuit.

Id. at 247 (emphasis supplied).

32
the liability of the nonparties.

When we view the instructions as a whole, particularly in conjunction with

their relevant verdict forms and with the direct cause instructions, we note that

Primeco could still argue, and in fact did argue, that the nonparties were the direct

cause of the accident and injuries. See Aplts’ App. vol. IX, at 652 (Primeco’s

closing argument) (“A broken bolt, JLG; failure to grease, Young Electric. . . .

[I]f in fact, . . . [Primeco], were the two pieces of bread, then there is only one

piece of meat between them, and that’s JLG.”); vol. I at 236 (Jury Instruction No.

13) (“Defendants Young Enterprises and Primeco claim that the negligence of JLG

. . . and Young Electric . . . was the direct cause of plaintiff’s damages, or at least

had some causal connection with them.”). Similarly, even though the verdict

forms did not require specific findings as to the liability of nonparties, the

instructions and verdict forms provided the jury with ample opportunity to

conclude that the nonparties were the negligent parties. Our review of the jury

instructions indicates that the instructions adequately reflect the law and do not

provide grounds for reversal.

As to the timing of the changes to the instructions and the verdict form, we

note that it would have been preferable for the district court to have made these

changes before closing arguments. However, Primeco has failed to establish that

it suffered any prejudice as a result of this eleventh-hour amendment. Because

33
Primeco’s attorneys adequately presented its defenses to the jury, the fact that the

district court made the subject changes after closing argument does not entitle

Primeco to a new trial.

B. Mr. Woolard’s Cross-Appeal for Recalculation of Prejudgment
Interest

Mr. Woolard’s cross-appeal questions the district court’s calculation of

prejudgment interest. The district court granted Mr. Woolard’s motion for

prejudgment interest under Okla. Stat. tit. 12, § 727. The district court also

granted motions by Primeco and Young to amend the judgment to reflect the offset

of Mr. Woolard’s pretrial settlement with JLG, pursuant to Okla. Stat. tit. 12, §

832. In its calculation of prejudgment interest, the district court determined that

the calculation should be based on the reduced amount of $1.2 million. Mr.

Woolard contends that the district court erred in failing to include the $300,000.00

in its calculation of prejudgement interest.

Generally, we will uphold a district court’s award of prejudgment interest

absent an abuse of discretion. See Driver Music Co. v. Commercial Union Ins.

Cos. , 94 F.3d 1428, 1433 (10th Cir. 1996). We review “any statutory interpretation

or legal analysis underlying such an award . . . de novo. Id. We hold that the

district court erred in its calculation of prejudgment interest on the reduced verdict.

Section 727(E) of Title 12 provides that in personal injury actions, “ the

court in rendering judgment shall add interest on the verdict at a rate prescribed . . .

34
from the date the suit resulting in the judgment commenced . . . .” Okla. Stat. Ann.

tit. 12, § 727(E) (emphasis supplied). We have previously considered setoffs in the

context of an analogous Oklahoma statute, Section 3629(B) of Title 36. Section

3629(B) addresses the award of prejudgment interest in an insurance context: “[i]f

the insured is the prevailing party, the court in rendering judgment shall add

interest on the verdict at the rate of fifteen percent (15%) per year from the date the

loss was payable . . . .” Okla. Stat. Ann. tit. 36, § 3629(B) (emphasis supplied).

In Driver , we recognized that an award of prejudgment interest based on the entire

verdict comports with Section 3629(B)’s express command to add interest “on the

verdict.” 94 F.3d at 1434; Okla. Stat. Ann. tit. 36, § 3629(B). Section 727(E) of

Title 12 provides the identical command.

However, several Oklahoma decisions have indicated that the statutory

provision that interest should be awarded on “the verdict” does not foreclose the

deduction of amounts received in settlement before the interest calculation is made.

For example, in Landrum v. National Union Ins. Co. , 912 P.2d 324, 329 (Okla.

1996), the Oklahoma Supreme Court affirmed a lower court decision deducting the

entire prelitigation settlement amount prior to calculating prejudgment interest,

reasoning that to allow a plaintiff to retain the prejudgment interest that accrued on

a settlement payment received before litigation ensued would be to allow a plaintiff

a windfall. See also Baker v. Barnes , 949 P.2d 695, 697 (Okla. Ct. App. 1997)

35
(similarly affirming the deduction of the entire pre-litigation settlement before

calculating prejudgment interest). The purpose of prejudgment interest is to make

the plaintiff whole by repayment of interest for loss of use of the money to which

the plaintiff was entitled. See id. Awarding a party prejudgment interest on

amounts that he has already received from a settling party is not necessary to

compensate the plaintiff for this loss of use.

Here, we may harmonize the statute’s language with Oklahoma’s

authoritative application of the statute. In this case, Mr. Woolard received no pre-

litigation benefit from the JLG settlement. See id. Mr. Woolard entered the

settlement agreement approximately one month before the trial in this case, and

subsequently received the settlement payment.

To deduct the $300,000.00 JLG settlement amount in full before calculating

prejudgment interest appears to be prohibited from the plain language of Section

727(E), which requires calculation of prejudgment interest on the entire verdict.

To award interest on the entire verdict, however, would do more than simply

compensate Mr. Woolard for the loss of the use of funds between the filing of the

suit and the entry of the judgment. See Landrum , 912 P.2d at 329.

We agree with the Second Circuit’s reasoning in In re Joint E. Dist. & S.

Dist. Asbestos Litig. (Bauman v. Keene Corp.) , 18 F.3d 126, 132 (2d Cir. 1994)

(“Bauman ”), where the court affirmed the district court’s calculation of

36
prejudgment interest before the reduction of any settlement amounts. The Bauman

court provided a helpful formula to take into account the timing of any settlement

payments to avoid potential double recovery by the plaintiff. First, it converted the

settlement amount to judgment-time dollars, using the same legal rate of interest

that is used in calculating prejudgment interest on the compensatory damages

portion of the verdict. Second, it subtracted the adjusted settlement figure from the

adjusted compensatory damages figure. 5
See id. This method harmonizes the

5
There, the court’s formula was:

(1) Add to each settlement hypothetical interest at the prejudgment
interest rate from the time of the settlement until the time of the
judgment. This interest is hypothetical because it is added to the
settlement for calculation purposes only. This step converts each
settlement into judgment-time dollars.

(2) Aggregate the resulting amounts (settlements plus hypothetical
interest).

(3) Add prejudgment interest to the verdict.

(4) From the total arrived at in step 3, subtract the greater of either (a)
the aggregate of the settlements converted into judgment-time dollars
(the result from step 2), or (b) the settling defendants’ total equitable
shares of liability including prejudgment interest (i.e., the percentage
of liability attributed by the factfinder to all settling defendants, in the
aggregate, multiplied by the result from step 3 (i.e., the verdict
increased by prejudgment interest)).

(5) The amount arrived at in step 4 is the amount of the judgment
against the nonsettling defendant.

(continued...)

37
statute’s plain language and the Oklahoma Supreme Court’s interpretation of the

legislative intent of Section 727(E), that is to compensate plaintiffs by giving them

the benefit of prejudgment interest on their compensatory damage awards and to

give the defendants the benefit of setoff of previously settled claims. See id. ;

Landrum , 916 P.2d at 329.

Accordingly, we reverse the district court’s calculation of prejudgment

interest and remand to the district court for recalculation of the judgment by (1)

adding prejudgment interest at the legal rate to the entire verdict pursuant to

Section 727; (2) adding interest at the legal rate to the settlement sum from the date

of the receipt of the settlement payment made until the date of judgment; and (3)

subtracting the second calculation from the first to determine the amount owed to

Mr. Woolard.

C. Young Enterprises’s Appeal of its Cross-Claims Against Primeco

Young argues that the district court erred in refusing to give its proposed

instructions regarding its cross-claims against Primeco and seeks a directed verdict

or a new trial. The district court’s decision whether to give a particular jury

instruction is within its sound discretion, while we review its legal conclusions de

(...continued)
5

18 F.3d at 132-33.

38
novo. See City of Wichita v. United States Gypsum Co. , 72 F.3d 1491, 1495 (10th

Cir. 1996). Further, Young is entitled to an instruction based on its theory of the

case if it has produced appropriate evidence to support it. See Wilson v. Union

Pac. R.R. Co. , 56 F.3d 1226, 1230 (10th Cir. 1995). “[W]e review the record as a

whole to determine whether the instructions ‘state the law which governs and

provided the jury with an ample understanding of the issues and the standards

applicable.’” Big Horn Coal Co. , 852 F.2d at 1271 (quoting Ramsey v. Culpepper ,

738 F.2d 1092, 1098 (10th Cir. 1984)).

Young’s cross-claims against Primeco sought indemnification and/or

contribution for any and all claims asserted by Mr. Woolard against Young.

Young’s theories are threefold: (1) that it was entitled to an instruction regarding

strict product liability indemnity; (2) that as a third-party beneficiary of the

Distributor Agreement it was entitled to an instruction regarding Primeco’s breach

of its duties to Young under the Distributor Agreement; and (3) that it was entitled

to a supervening cause instruction stating that Primeco’s awareness of the need for

an inspection of the lift within a month of the accident supervened any previous

failure of Young to properly inspect the lift.

Primeco responds that Young’s settlement agreement with Mr. Woolard

precludes it from pursuing this appeal of its cross-claims. It also contends that

Young asserts no recognized right to indemnity, that Young is not a third-party

39
beneficiary of the Distributor Agreement, and that Young’s requested supervening

cause instruction is incongruent with the jury’s comparative negligence finding.

Before addressing its specific theories, we note that we agree with Young

that its settlement with Mr. Woolard does not bar Young’s appeal. The order

dismissing all claims between Mr. Woolard and Young explicitly states that “[a]ll

claims . . . as between Young and Primeco remain active on appeal.” Dist. Ct.

Order (filed July 29, 1998) at 4. Young is not attacking the jury verdict, as

Primeco suggests. The cases on which Primeco relies do not estop Young from

appealing the district court’s refusal to instruct on Young’s cross-claim. However,

Young’s settlement with Mr. Woolard does impact its ability to seek contribution,

as discussed below.

1. Strict Product Liability

We begin with Young’s argument that the district court erred in refusing to

instruct the jury on its claim for indemnification or contribution against Primeco on

a product liability theory. Young maintains that Primeco supplied it with a

defective product because the lift’s design was flawed and because it contained an

improper sheave pin that caused the eyebolt to fail. According to Young, those

deficiencies render Primeco strictly liable as the seller of the lift for damages

incurred by Young. As damages, Young identifies the jury verdict obtained by Mr.

40
Woolard (finding Young forty percent responsible for $1.5 million in damages) and

the subsequent $400,000.00 settlement that Young made with him. We will first

discuss Young’s indemnification claim. Then, we will address its claim for

contribution.

Under Oklahoma law, indemnity may arise out of an express contractual

provision. Okla. Stat. Ann. tit. 15, § 421 (stating that “[i]ndemnity is a contract by

which one engages to save another from a legal consequence of the conduct of one

of the parties, or of some other person”). Alternatively, “‘[n]oncontractual or

equitable indemnity’” may arise from a legal relationship between the parties.

National Union Fire Ins. Co. v. A.A.R. W. Skyways, Inc. , 784 P.2d 52, 54 (Okla.

1989) (quoting Travelers Ins. Co. v. L.V. French Trucking Serv., Inc. , 770 P.2d

551, 555 n.16 (Okla. 1988)); see also Restatement of Restitution § 76 (1937) (“A

person who, in whole or in part, has discharged a duty which is owed by him but

which as between himself and another should have been discharged by the other, is

entitled to indemnity from the other, unless the payor is barred by the wrongful

nature of his conduct.”). Here, Young invokes noncontractual indemnity. The

“legal relationship” on which it relies is the one between the buyer and the seller of

a dangerous product.

Under a strict liability theory, a party who has a role in the distribution of a

product may seek indemnity from the entity from which it purchased the product.

41
See Booker v. Sears Roebuck & Co. , 785 P.2d 297, 298 (Okla. 1989) (stating that

under Oklahoma law, “a manufacturer may be found to have a duty to indemnify its

dealer against claims for loss caused by the manufacturer’s defective product”).

Nevertheless, there are important limitations on this right to indemnity. In

particular, Oklahoma courts have repeatedly held that a party whose negligence has

proximately caused the injuries in question may not seek equitable indemnification

from a third party who has also proximately caused those injuries. See National

Union Fire Ins. Co. , 784 P.2d at 54-55 (stating the general rule that “ one without

fault , who is forced to pay on behalf of another, is entitled to indemnification” and

that “‘no right of indemnity exists on behalf of either [negligent defendant] against

the other; in such a case, there is only a common liability and not a primary and

secondary one, even though one may have been very much more negligent that the

other’”) (quoting Sirianni v. Nugent Bros., Inc. , 506 A.2d 868, 871 (Pa. 1986)

(emphasis added)) ; Travelers Ins. Co. , 770 P.2d at 555 n.16 (stating the principle

of equitable or implied indemnity as “one who is only constructively or vicariously

obligated to pay damages because of another’s tortious conduct may recover the

sum paid from the tortfeasor”) (emphasis added); Braden v. Hendricks , 695 P.2d

1343, 1349 (Okla. 1985) (stating that Oklahoma law “does recognize a right of

indemnity when one–who was only constructively liable to the injured party and

was in no manner responsible for the harm –is compelled to pay damages because of

42
the tortious act by another”) (second emphasis added)

Here, Young cannot be characterized as a party “in no manner responsible

for the harm.” Braden , 695 P.2d at 1349. As we have noted, the jury found that

Young’s negligence proximately caused forty percent of Mr. Woolard’s injuries.

That finding is supported by evidence in the record. The jury evaluated and

apparently gave substantive weight to testimony that Young’s mechanic (1) did not

inspect the lift upon receipt, (2) knew that annual inspections were required under

the JLG manual, under ANSI standards, and OSHA regulations, and (3) did not

seek paperwork evidencing that Primeco or another party had performed such

inspections. Although there was evidence that an annual inspection required

inspection of the pins, Young’s mechanic testified that the inspections that Young

or Primeco performed did not include disassembly of the boom. Accordingly, in

asserting its strict liability indemnity claim against Primeco, Young seeks to

recover damages caused by its own negligence.

In its appellate brief, Young invokes decisions from other jurisdictions

allowing a negligent party to recover indemnity on a products liability claim. See

Young’s Br. for Cross-Appellant at 24-25 (noting that “[c]ourts in other

jurisdictions have allowed indemnification under circumstances where the

downstream user fails to discover a defect in the product that they sold”). Young’s

argument is supported not only by the decisions that it cites but by several other

43
authorities. See, e.g , Restatement of Torts (Second) § 886B(d) (stating that an

indemnitee is entitled to indemnity if “[t]he indemnitor supplied a defective chattel

or performed defective work upon land or buildings as a result of which both were

liable to the third person, and the indemnitee innocently or negligently failed to

discover the defect”) (emphasis supplied); Schneider Nat’l, Inc. v. Holland Hitch

Co. , 843 P.2d 561, 580, 582 (Wyo. 1992) (concluding that “Wyoming law permits

an actor whose failure to inspect contributed to a third party’s injuries to obtain

indemnity from those who created or were otherwise directly responsible for the

conditions that caused the third party’s injuries” and that “[t]he failure of a product

user to inspect and discover a defective product does not bar indemnity”) (emphasis

in original); Herndon v. Seven Bar Flying Serv., Inc. , 716 F.2d 1322, 1332

(10th Cir. 1983) (stating that, under New Mexico law “a tort feasor . . . held

proximately liable for its own negligence . . . in failing to discover and remedy

a dangerous condition created by another . . . has been allowed indemnity”).

However, other courts have disagreed, concluding (like the Oklahoma

decisions set forth above) that a finding that a party has proximately caused the

injuries in question precludes that party’s claim for indemnity. See, e.g. , Frazer v.

A.F. Munsterman, Inc. 527 N.E.2d 1248, 1255 (Ill. 1988) (rejecting a party’s claim

for indemnity because “[i]t would be unfair for it to be able, through an action of

implied indemnity, to shift the entire loss to the other defendants when its own

44
negligence contributed to cause the plaintiff’s injury”); Kennon v. Slipstreamer,

Inc. , 794 F.2d 1067, 1073 (5th Cir. 1986) (noting that under Texas law

“independently culpable” retailer cannot recover in product liability cases); Rabatin

v. Columbus Lines, Inc. , 790 F.2d 22, 26 (3d Cir. 1986) (where one concurrent

tortfeasor produced a single harm, the court noted that indemnification claim

against manufacturer based on strict liability “does not obtain” where equipment

owner’s “independent act of negligence,” specifically, the failure to correct a

known defect, was found to be a proximate cause of plaintiff’s injuries); see

generally Schneider , 843 P.2d at 583 n.17 (“We recognize that other jurisdictions

have barred indemnity under strict liability when the party seeking indemnity is

considered negligent or otherwise at fault in causing the injury.”).

Although the issue is an important one, we need not here decide between

these contrasting views. Under the Oklahoma law that we must apply, the jury’s

finding that Young was the proximate cause of forty percent of Mr. Woolard’s

injuries bars Young’s claim to equitable indemnity from Primeco on a products

liability theory. 6

6
We note that a different result might be warranted if Young’s claim was
based on a contractual provision. See Wallace v. Sherwood Constr. Co. , 877
P.2d 632, 634 (Okla. Ct. App. 1994) (concluding that “[i[ndemnity agreements
will not be construed to obligate the indemnitor to indemnify the indemnitee
against losses arising from the indemnitee’s own negligence unless the contract
makes it unequivocally clear that that is what the parties intended”) (quotations

45
 Young’s argument that it is entitled to recover under the related doctrine of

contribution is also unpersuasive. Under Oklahoma law, a party who has been

found jointly and severally liable in tort may be entitled to contribution. See Okla.

Stat. Ann. tit. 12, § 832(A), (B) (“When two or more persons become jointly or

severally liable in tort for the same injury to person . . ., there is a right of

contribution among them . . . . No tort-feasor is compelled to make contribution

beyond their pro rata share of the entire liability.”). “The right of contribution

exists only in favor of a tort-feasor who has paid more than their pro rata share of

the common liability . . . .” Id. § 832(B). Contribution thus represents a sharing of

joint and several liability by providing for proportional reimbursement from other

parties who are liable to the plaintiff. See National Union Fire Ins. Co. , 784 P.2d

at 57 (determining that “pro rata” share and “proportionate” share are synonymous

as to contribution).

Although before the case went to the jury, Young may have been entitled to a

contribution instruction, Oklahoma’s contribution statute allows only parties “who

ha[ve] paid more than their pro rata share of the common liability” to seek

contribution. Okla. Stat. Ann. tit. 12, § 832(B). Young’s cross-claim cannot

survive, because Young’s settlement with Mr. Woolard was for an amount less than

(...continued)
6

omitted).

46
Young’s pro rata share. In addition, under the statute, “[a] tort-feasor who enters

into a settlement with a claimant is not entitled to recover contribution from

another tort-feasor whose liability for the injury . . . is not extinguished by the

settlement nor in respect to any amount paid in a settlement which is in excess of

what was reasonable.” Id. § 832(D). As such, the district court’s failure to instruct

on Young’s cross-claim for contribution under a strict liability theory does not

require correction.

We therefore conclude that the district court properly denied Young’s

motions for a new trial and for judgment as a matter of law on its claims for

products liability indemnity and for contribution.

2. Cross-Claim for Breach of Contract

Young also argues that the district court erred in refusing to instruct the jury

on its breach of contract claim against Primeco. For the same reasons we have set

forth in discussing Young’s claim for indemnity on a strict products liability theory,

Young’s argument is not supported by Oklahoma law. Although Young may avail

itself of the Distributor Agreement’s benefits and pursue its claims for breach of

contract based on breach of warranty or other theories, see Hesser , 956 P.2d at 867;

Keel , 639 P.2d at 1231, it cannot seek equitable indemnity on a breach of contract

theory for damages arising from its own negligence, see Braden , 695 P.2d at 1349.

47
Like Young’s product liability cross-claim, its cross-claim for breach of contact

seeks damages that the jury found were proximately caused by Young’s negligence.

Accordingly, the district court properly denied Young’s request to instruct the jury

on this claim and properly denied Young’s motion for judgment as a matter of law.

3. Supervening Cause Instruction

Finally, Young contends that the trial court erred in refusing to instruct on

supervening cause. In particular, Young maintains that, because the district court

did not give such an instruction, Young was deprived of the opportunity to argue

that Primeco’s conduct was a supervening cause of Mr. Woolard’s injuries and that,

as a result, Young should not be held liable for them. We conclude that the district

court did not abuse its discretion in declining to give Young’s requested instruction

and in denying its motion for a directed verdict.

Under Oklahoma law, “[i]f an unforeseeable event intervenes between the

breach of duty, and that event directly causes the injury completely independent of

the original breach, then the intervening cause becomes the supervening cause and

breaks the causal nexus between the initial breach and the subsequent injury.”

Tomlinson 854 P.2d at 916. The test to determine whether a supervening cause

exists is whether the cause is (1) independent of the original act or omission, (2)

adequate by itself to bring about the resulting harm to the plaintiff, and (3) not

48
reasonably foreseeable by the defendant. See Lockhart v. Loosen , 943 P.2d 1074,

1079 (Okla. 1997).

Upon review of the evidence presented at trial and the district court’s

instructions to the jury, we conclude that Young was given an adequate opportunity

to advance its argument that Primeco was a supervening cause of Mr. Woolard’s

injuries. The jury was given instructions regarding direct cause, comparative

negligence, concurrent tortfeasors, multiple defendants and the potential negligence

of nonparties. The court’s direct cause instruction stated that “[f]or negligence to

be a direct cause it is necessary that some injury to a person in plaintiff’s situation

must have been a reasonably foreseeable result of negligence.” Aplts’ App. vol. I,

at 234. Young argued to the jury that JLG, Primeco, Mr. Woolard’s employer, and

Mr. Woolard—rather than Young itself—caused Mr. Woolard’s injuries. Although

the jury found that Young’s independent act or acts of negligence, along with

Primeco’s acts, were the proximate cause of Mr. Woolard’s injuries, the jury could

have concluded—had it assessed the evidence differently—that Primeco’s acts

“‘intervene[d] so as to exclude the negligence of [Young] as one of the proximate

causes of the injury.’” Rawl v. United States , 778 F.2d 1009, 1015 (4th Cir. 1985)

(quoting Matthews v. Porter , 124 S.E.2d 321, 325 (S.C. 1962)).

Accordingly, we hold that the district court’s refusal to give the supervening

cause instruction requested by Young was not reversible error. Cf. In re Brooklyn

49
Navy Yard Asbestos Litig. , 971 F.2d 831, 838 (2d Cir. 1992) (concluding that, in

light of the trial court’s causation instruction “the absence of a precise, emphatic

instruction on superseding cause was at most harmless error”); Roggow v. Mineral

Processing Corp. , 894 F.2d 246, 248-49 (7th Cir. 1990) (concluding that in light of

the proximate cause instruction given to the jury, the failure to give a superseding

cause instruction was not error); Vasina v. Grumman Corp. , 644 F.2d 112, 116 (2d

Cir. 1981) (“the issue of ‘intervening’ and ‘superseding’ negligence was contained

in the issue of proximate cause, and was adequately presented to the jury in the

latter form”). Similarly, because the jury implicitly rejected Young’s supervening

cause argument, we reject Young’s contention that it is entitled to judgment as a

matter of law against Primeco in this cross-claim.

III. CONCLUSION

We AFFIRM the district court’s denial of Primeco’s motion for a

judgment as a matter of law and its motion for a new trial. We REVERSE the

district court’s calculation of prejudgment interest and we REMAND for

recalculation. We AFFIRM the denial of Young’s motion for judgment as

matter of law and its appeal of the district court’s refusal to grant instructions

based on Young’s claims for indemnification or contribution stemming from

Primeco’s product liability, breach of contract or supervening cause.

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